Mohanlal Bhoi vs State Of Orissa
2023 Latest Caselaw 13488 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                         JCRLA No.80 of 2012
    In the matter of an Appeal under section 383 of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and order of sentence dated 13th December, 2010 passed by the
    learned Additional Sessions Judge, Nuapada in Criminal Trial
    No.12 of 2010.

        Mohanlal Bhoi                         ....        Appellant

                                  -versus-

        State of Orissa                       ....       Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                For Appellant     -       Mr.B.K. Nayak,
                                          Advocate as Amicus Curiae

                For Respondent -          Mr.P.K.Mohanty,
                                          Additional Standing Counsel
    CORAM:
    MR. JUSTICE D.DASH
    MR. JUSTICE G.SATAPATHY

    Date of Hearing :16.10.2023       :   Date of Judgment : 01.11.2023

D.Dash, J. The Appellant, by filing this Appeal, from inside the jail,

has challenged the judgment of conviction and order of sentence

dated 13th December, 2010 passed by the learned Additional

Sessions Judge, Nuapada in Criminal Trial No.12 of 2010 arising

out of G.R Case No.454 of 2009, corresponding to Khariar P.S.

Case No.238(2) of 2009 of the Court of the learned Judicial

Magistrate First Class (J.M.F.C.), Khariar.

JCRLA No.80 of 2012 {{ 2 }}

The Appellant (accused) thereunder has been convicted for

commission of offence under section 302 of the Indian Penal

Code, 1860 (in short, 'the IPC') and accordingly, he has been

sentenced to undergo imprisonment for life and pay fine of

Rs.10,000/- (Rupees Ten Thousand) in default to undergo

rigorous imprisonment for a period of one (1) year.

2. PROSECUTION CASE:-

On 31.11.2009 around 9.00 p.m., one Shesadev Bhoi

(informant-P.W.2), who is the brother of Laxman Bhoi, submitted

a written report being scribed by Durjodhan Bhoi (P.W.3) with

the Inspector-in-Charge (IIC-P.W.14) of Khariar Police Station

(P.S.) stating therein that on that day around 8.00 p.m., when he

was sitting on the front verandah of the house of his co-villager,

Hari Majhi, his elder brother Laxman Bhoi, who was then the

Ward Member of the village, was standing in front of grocery

shop of one Sundarmani. It was stated that the accused then came

from his house and went towards the grocery shop and gave a

slap to one Mahul Bhoi, who had been used to purchase grocery

articles from that shop. Mahul, out of fear, left the place. The

accused thereafter when quarreled with one Ram Chandra Bhoi,

Laxman told him not to quarrel and go back to his wife. It is then

stated that the accused dragged Laxman and both went to the

house of the accused. Sometime thereafter, the wife of the

accused raised hullah and Shesadev (informant-P.W.2) hearing

JCRLA No.80 of 2012 {{ 3 }}

the hullah when went to the house of the accused, he saw

Laxman lying dead with bleeding injury on his head. The accused

carrying a Ghana (Hammer) when was attempting to give further

blow on the head of Laxman, the informant (P.W.2) caught hold

of the accused and snatched away that Ghana (Hammer) from

him. Shesadev (informant-P.W.2) thereafter raised hullah and

hearing the same, his nephew-Kailash Ch. Bhoi (P.W.5), Nilambar

Bhoi and others came to the spot. The deceased being found to be

lying senseless, was immediately shifted to Mission Hospital,

Khariar. The Doctor, having found the patient to be critical,

referred the case to V.S.S. Medical College & Hospital, Burla

where Laxman died.

The written report, being received by the IIC (P.W.14), the

same was treated as FIR (Ext.2) and upon registration of the case,

the investigation was taken up.

3. The Investigating Officer (I.O.-P.W.14) examined the

informant (P.W.2) and the scribe (P.W.3). Having visited the spot,

he (P.W.14), prepared the spot map (Ext.12). During his visit to

the spot, he collected sample earth and blood stained earth from

the spot and the same were seized under seizure list (Ext.13). He

had also seized one wooden handle iron hammer under the

seizure list (Ext.1). Wearing apparels of the accused have been

seized by the I.O. (P.W.14) under seizure list (Ext.4). On getting

information that Laxman died during his treatment at Mission

JCRLA No.80 of 2012 {{ 4 }}

Hospital, Khariar, he (P.W.14) went to the spot and held inquest

over the dead body of the deceased and prepared the report

(Ext.3) to that effect in presence of witnesses. The dead body was

then sent for post mortem examination by issuing necessary

requisition. The I.O. (P.W.14) sent the seized incriminating

articles for chemical examination through Court. On completion

of investigation, Final Form was submitted by the I.O. (P.W.14)

placing the accused to face the Trial for commission of offence

under section 302 of the IPC.

4. Learned J.M.F.C., Khariar, on receipt of the Final Form, took

cognizance of the offence under section 302 of the IPC and after

observing the formalities, committed the case to the Court of

Sessions. That is how the Trial commenced by framing the charge

for the said offence against the accused.

5. In the trial, the prosecution examined in total fourteen (14)

witnesses. Out of them, as already stated, P.W.2 is the informant

and the younger brother of the deceased. P.W.1 is a post

occurrence witness as well as a witness to the seizure of Ghana

(Hammer). P.W.3 is another younger brother of the deceased,

who has scribed the FIR (Ext.2) whereas P.W.6 is the wife of the

accused. P.Ws.7 & 8 are the police personnels. P.W.9 is the

Doctor, who had medically examined the accused whereas

P.W.11 is the Doctor, who conducted autopsy over the dead body

JCRLA No.80 of 2012 {{ 5 }}

of the deceased. The I.O. of the case, at the end, has come to the

witness box as P.W.14.

6. Besides leading the evidence by examining the above

witnesses, the prosecution has proved several documents which

have been admitted in the evidence and marked Ext. 1 to 17.

Important of those, are the F.I.R. (Ext.2), Inquest Report (Ext.3)

and Postmortem Examination Report (Ext.8). The spot map

prepared by the I.O. (P.W.14) has been admitted in evidence and

marked as Ext.12 whereas the chemical examination report is

Ext.17.

7. The accused, having taken the plea of denial and false

implication, has, however not tendered any evidence in support

of the defense.

8. Mr.B.K. Nayak, learned counsel for the Appellant

(accused), from very beginning, instead of impeaching the

evidence let in by the prosecution as to the nature of death and

more importantly the role played and the act done by the accused

as have been placed by the prosecution, submitted that with the

acceptance of all those, the Trial Court instead of holding the

accused guilty of commission of offence under section 302 of the

IPC, ought to have convicted him for the offence under section

304-I of the IPC. He submitted that the parties hail from rural

back ground and there is no evidence on record to show that the

JCRLA No.80 of 2012 {{ 6 }}

accused had any prior planning for the incident so as to assault

the deceased and it appears that everything had happened all of a

sudden and within short time span. He further submitted that as

per the evidence of the informant (P.W.2) when P.W.6 has not

supported the case of the prosecution and turned hostile and the

accused is said to have given a solitary blow on the head of the

deceased by means of a Ghana (Hammer), which too is also not

stated to have been carried by the accused from the beginning

when no such other evidence is forthcoming as to what happened

inside the house that why P.W.6 raised the cry, the Trial Coiurt

has failed to take note of all these. He further submitted that the

Doctor, (P.W.11), who had conducted the autopsy over the dead

body of the deceased, has not stated that the injuries, which he

noticed on the head of the deceased are the result of successive

blows. According to him, keeping in view the status of the parties

and the background from which they hail, it can be well said that

their tamper usually run high and behavior for silly reasons,

often becomes abnormal. In view of all these above, according to

him the Trial Court ought not to have convicted the accused for

commission of offence under section 302 of the IPC. He, therefore,

urged for altercation of conviction for commission of offence

under Section 302 of the IPC to offence under Section 304-I of the

IPC and accordingly, contended that the accused be visited with

the sentences appropriate for the said offence.

JCRLA No.80 of 2012 {{ 7 }}

9. Mr.P.K.Mohanty, learned Additional Standing Counsel

submitted all in favour of the finding returned by the Trial Court

that the accused is liable for commission of the offence under

Section 302 of the I.P.C. He further submitted that the blow being

by Ghana (Hammer), on the head of the deceased, which has

proved fatal in causing the death, the Trial Court did commit no

mistake in holding the accused guilty for commission of the

offence under section 302 of the IPC.

10. Keeping in view the submissions made, we have carefully

read the impugned judgment of conviction. We have also

extensively travelled through the depositions of the witnesses

(P.W.1 to P.W.14) and have perused the documents admitted in

evidence and marked as Ext.1 to Ext.17.

11. In order to address the rival submission on the question of

alteration of the finding of the Trial Court holding the accused

guilty for commission of the offence under section 302 of the IPC,

when we look at the evidence of P.W.11, the Doctor, who had

conducted the autopsy over the dead body of the deceased, we

find him to have stated that he had noticed two depressed

fracture, one on the left temporal bone and another on the left

temporal bone in front of the left ear. He had noticed contusion

over left frontal lobe lacerated extra dural haemorrhage adhered

to dural present over left tempero parietal area and left side

JCRLA No.80 of 2012 {{ 8 }}

cerebral swelling. It is his evidence that the death was on account

of respiratory failure due to brain stem compression. Nowhere it

has been stated by him that these injuries on the head are the

result of successive blows and cannot be by one.

P.W.2 states that when he arrived at the spot, the deceased

was lying in an injured condition and thereafter, the accused

when was attempting to give the blow, he was prevented. The

evidence on record reveal that the deceased had been taken to

Hospital for treatment and thereafter was referred to V.S.S.

Medical College & Hospital, Burla where he died. The incident

has taken place in the house of the accused and the deceased

came into picture when he intervened in the quarrel between

Rama and the accused. No evidence is there to show that the

weapon used for causing the injury on the head of the deceased

was being carried by the accused from the very beginning when

the accused is said to have dragged the deceased to his house

from the grocery shop. The parties hail from rural background

and live on cultivation and judicial notice of the fact can be taken

that temper run high among them and many a times for silly

reasons they behave in an unexpected manner exhibiting

abnormal behavior.

12. Taking the cumulative view of all these above

circumstances appearing in the evidence, as discussed; we are of

the view that the offence could be properly categorized as one

JCRLA No.80 of 2012 {{ 9 }}

punishable under section 304-I of the IPC. We are thus of the

considered opinion that for the role played by the accused and

the act done, he would be liable for conviction under Section 304-

I of the IPC.

In that view of the matter, this Court alters the conviction

under Section 302 of the IPC to one under section 304-I of the IPC.

Consequently, the Appellant (accused) is sentenced to undergo

rigorous imprisonment for a period of ten (10) years.

13. The Appeal is allowed in part. With the above modification

as to the judgment of conviction and order of sentence dated 13th

December, 2010 passed by the learned Additional Sessions Judge,

Nuapada in Criminal Trial No.12 of 2010, the Appeal stands

disposed of.

(D. Dash), Judge.

G.Satapathy, J. I Agree.

(G.Satapathy), Judge

Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 02-Nov-2023 17:18:01

JCRLA No.80 of 2012